Video Conferencing for Access to Justice An Evaluation of the Montana Experiment Final Report June 2007 Richard Zorza Evaluation Consultant richard@zorza.net Funded by the Legal Services Corporation Technology Initiative Grants Program through a grant to the Montana Legal Services Association
TABLE OF CONTENTS I. INTRODUCTION AND EXECUTIVE SUMMARY... 1 II. THE EXPERIMENT AND THE EVALUATION PROCESS... 1 A. The Experiment...1 B. Testing and Observation...2 C. Interviews...2 D. Survey and Observation Data...3 E. Cost Data...3 II. CONCLUSIONS... 3 A. Core Conclusions Applying to All Uses of the Technology...3 B. Conclusions about Meetings...4 C. Conclusions about Trainings and Clinics...8 D. Conclusions about Interviews and Mediation...11 E. Conclusions about Court Appearances...12 F. Conclusions about Impact on the Overall Delivery System...14 G. Conclusions about Evaluation of Technology in the Legal Aid Context...15 H. General Conclusions about Benefits of the Technology...15 IV. ISSUES NEEDING ADDRESSING... 17 A. Court Appearance Issues...17 B. Remote Interview Issues...20 C. Remote Meeting Participation Issues...21 D. Training and Continuing Legal Education Issues...21 E. Mediation Service Issues...22 V. GENERAL RECOMMENDATIONS... 23
A. Continue Adoption with Sensitivity to Optimizing Quality of Access...23 B. Enhance Marketing and Promotion...23 C. Develop Usage Protocols...24 D. Develop Standards and Provide Certification...26 E. Provide Training, Offer Practice and Continue Analysis...27 F. Develop Collaborations with Vendors in Support of New Technology...28 G. Create a Research/Testing/Training Lab Environment...29 H. Explore Implications for Legal Aid Programs in Other States...29 VI. CONCLUSION... 29 APPENDIX: EVALUATION INTERVIEWS... 30
TABLE OF FIGURES Figure 1: Comparison of Appearance Modes for Meetings... 4 Figure 2: Direct Comparison of Meeting Modes... 5 Figure 3: Goal Score by Mode of Appearance... 5 Figure 4: Goal Score Sorted by Score... 6 Figure 5: Tasks Score Sorted by Mode of Appearance... 6 Figure 6: Meeting Tasks Score Sorted by Score... 7 Figure 7: Training Effectiveness Comparison... 8 Figure 8: Learning Test Score Comparison... 9 Figure 9: Clinic Teacher Observed Effectivness... 10 Figure 10: Clinic Learning Effectiveness... 10 Figure 11: Attorney and Client Satisfaction with Interviews... 11 Figure 12: Attorney Goals for Client Follow Up... 12 Figure 13: Observed Attorney Courtroom Effectiveness... 13 Figure 14: Attorney and Client Courtroom Satisfaction... 14
I. Introduction and Executive Summary This is the Final Report of the evaluation of the Montana Video Experiment. That experiment has sought to assess the potential of video conferencing to support access to justice. The experiment was conducted by the Montana Legal Services Association, has taken advantage of the federally funded Montana Judicial Interactive Video Network, and is itself funded by the Legal Services Corporation through its Technology Initiative Grants Program. The experiment has included tests of court appearances by video, staff and continuing legal education training, meetings, client interviews, mediation, and client self-help clinics. Data includes observation and surveys. The overall conclusion is that the use of video makes a contribution to access to justice. While appearance and participation by video, whether in court, in a meeting, or in any other context is not identical to in-person appearance, it appears that in most cases, and subject to caveats, the overall benefits outweigh the issues that emerge from the differences. However, the actual usage rate within legal services has been less than anticipated. It must also be acknowledged in this final report, however, that it has been much harder to compare the detail of video and in person participation, particularly in court, than was anticipated in the design of the full evaluation. In particular, notwithstanding general enthusiasm for the project, the evaluation process and design placed greater burdens than anticipated on the project, resulting in significantly less data and less detailed conclusions than had been hoped. All the conclusions must be read in the light of the very small survey size. This report summarizes the overall conclusions of the evaluation of the experiment, discusses the issues concerning management of video appearance and participation as they have emerged, and offers a number of recommendations for changes, processes, and procedures to help make sure that the quality of appearance and participation is as high as possible, and that the impact for access to justice can be maximized. It also discusses the problems with the evaluation and the experiment. II. The Experiment and the Evaluation Process A. The Experiment Montana is simultaneously one of the largest and one of the least populated states. This intensifies even the normally great challenges to those attempting to provide access to justice. In 2004, for example, there were only 84 lawyers in the entire eastern portion of the state. 1 The 1 This region constitutes Montana s 16 easternmost counties which in total cover 47,500 square miles, roughly the combined size of the states of New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut, New Jersey, and Maryland. Montana Video Evaluation Page 1
statewide legal aid program has been forced to close offices, and many counties have no legal aid presence. In 2001, with funding obtained with the support of its congressional delegation, the state started the development of a court and agency network of video stations. The Montana Legal Services Association (MLSA) quickly developed a partnership with the program and obtained funding from LSC to test the use of the network for video court appearances and the other purposes described in this evaluation. After a somewhat uncertain institutional start, the core state program is housed in the Montana Supreme Court Office of the Court Administrator with a full time staff person and enjoys strong court and legal aid leadership support. Forty-nine videoconference sites have been installed in 30 counties as part of this program. There are thirty-seven district court sites, one city court site, three adult detention center sites, four youth detention center sites, one county jail site, one state prison site, as well as individual sites located at the state hospital, the state crime lab, the University of Montana Law School, the Montana Supreme Court, and the Office of the Court Administrator. The legal aid program pays $500 a month in connection costs for the project and is able to make unlimited use of any of the existing sites. In 2003, the evaluation consultant for LSC s program visited the state, observed the technology, interviewed stakeholders and users and issued an evaluation report, which was generally highly positive, but suggested various research questions in need of exploration. In 2003, LSC decided to fund a more comprehensive evaluation of the project. An Interim Report, based on an additional visit and many interviews, was filed in September of 2005. That report did not include certain statistical data collection or the cost data. This Final Report includes this data to the extent that it is usable. B. Testing and Observation The evaluation consultant made heavy use of the system during his evaluation visit. He has not directly observed a real court appearance. C. Interviews The consultant has conducted eighteen interviews with a wide variety of stakeholders and users. The list is attached as Appendix I. 2 These were conducted for the Interim Evaluation, and these interviews continue to be a major source of the conclusions. In addition a survey of six judges, who were asked standard questions, was conducted by MLSA staff, and the results integrated into the Report. 2 The very greatest thanks to all of them. Any inadequacies and errors are the fault of the author. Montana Video Evaluation Page 2
D. Survey and Observation Data During the evaluation process, the consultant and MLSA developed a comprehensive set of survey and assessment tools designed to compare the quality and impacts of the interactions that occur in person and by video. Those surveys have been administered in a small number of situations and the results, to the extent useful, have been integrated into this report. However, the difficulty of obtaining the volume of data desired, and the difficulty of obtaining the long term follow-up data originally hoped for, greatly limit the utility of this data. 3 It is hoped that the methodology and survey tools may be of additional use in the future. E. Cost Data MLSA has made available to the consultant cost saving information. This has made it possible to assess some of the cost savings in those situations in which video participation might occur. II. Conclusions A. Core Conclusions Applying to All Uses of the Technology There are four core conclusions that are derived from the detailed conclusions below and apply to all uses of video for appearance and participation. Conclusion One: The Overall Value of Video Conferencing Video conferencing has great value for all its participants. While video conferencing must be used with care and with sensitivity to the appropriateness of the situation, it increases access and saves resources. There is general unanimity among the Montana stakeholders on this general conclusion. Conclusion Two: The Relative Value of Phone and Video Conferencing Meetings, trainings and court hearings conducted by video are significantly easier to manage and more effective than those conducted over voice lines alone. There is strong general agreement from the interviewees that video conferencing provides a far greater sense of presence than voice participation alone in all the situations studied in this evaluation. It should be noted that with respect to court hearings this conclusion is based primarily, but not exclusively, upon reporting from the court system. 4 3 As will be clear from the text and charts below, the numbers are too small for statistical significance, and merely raise questions and suggest possibilities. As a general matter, the differences between particular cases are likely to be swamping any underlying patterns. 4 Indeed, the only area where the preference was not unanimous was in some reactions to different experiences of telephone versus video staff meetings. It is far from clear that these opinions reflected an assessment of the quality of a staff meeting by video conferencing, rather than extraneous factors. Montana Video Evaluation Page 3
Conclusion Three: Video Appearance and Participation Is Significantly Different from In-Person Appearance and Participation Video appearance and participation is different from in-person appearance and participation. It can not be viewed as just as or almost the same. While the natural tendency is to compare video and in-person appearance and participation, and while that is a critical part of the process of evaluating what, if anything, is lost in the use of the technology, the long term process must be to think about video appearance and participation in its own terms, assessing the impact on access to justice and efficiency. The practical reality is that for a legal aid program the choice is not between video and in person appearance, but is often between video and nothing. Conclusion Four: Requirements for Management and Optimization of Video Appearance and Participation The management of video appearance and participation requires specific management attention, new protocols, and sensitivity to the access needs of those at the remote site. Lacking such attention, it will not be widely used. These requirements are discussed in more detail below and vary somewhat for each of the uses of the technology. B. Conclusions about Meetings Conclusion Five: Video Meeting Participation Is Useful Participation in meetings by video serves useful purposes. It is generally preferable to participation by telephone and saves significant resources relative to in person meetings by reducing time and money needed for travel. This conclusion is based on interviews. The statistical data provides a somewhat more mixed picture with the observers rating video higher than telephone or than in person, the attendees rating phone highest, video next, and in person last. 5 Figure 1: Comparison of Appearance Modes for Meetings 5 There were a total of 33 video participants, 40 phone participants, and 46 in person participants in a total of two, three, and tree meetings of each type. Montana Video Evaluation Page 4
9.0 8.0 7.0 6.0 5.0 4.0 3.0 2.0 1.0 0.0 Obsv'd Effectiveness General Camparison of Modes Non Matched Meetings Attendee Goal Assessment Attendee Tasks Outcome Attendee Overall Asses In Person Telephone Video The matched data are highly limited, but suggest little difference between the three modes of appearance. Figure 2: Direct Comparison of Meeting Modes 10.0 8.0 6.0 4.0 2.0 Direct Comparison of Phone (Blue - 11) with Video (Red - 33) for Two Meetings 0.0 Goals Tasks Overall Ratings of Meeting Success for Goals Set by Meeting Leader Interestingly, the data for these meetings shows that the effectiveness of meeting goals set for the meeting itself is greater between different goals, than it is for different technologies (phone, video, in person). Figure 3: Goal Score by Mode of Appearance Montana Video Evaluation Page 5
Score By Mode (Goals) 10.0 8.0 6.0 4.0 Score 2.0 0.0 I I I I I I I I I T T T T T T T T T V V V V V V Score 5. 5. 5. 5. 6. 7. 7. 8. 8. 5. 6. 6. 6. 7. 7. 7. 7. 8. 5. 6. 6. 7. 8. 8. Mode In other words, when the goal meeting scores are sorted in order, the types of communication used is pretty mixed up. Figure 4: Goal Score Sorted by Score Score By Mode (Goals) 10.0 8.0 6.0 4.0 Score 2.0 0.0 I V I I I T I T T V T V I VT T I T T I V T I V Score 5. 5. 5. 5. 5. 5. 6. 6. 6. 6. 6. 6. 7. 7. 7. 7. 7. 7. 7. 8. 8. 8. 8. 8. Mode Ratings of Success for Tasks Identified by Meeting Leader Fascinatingly, when we build the same charts for the Tasks, we find that the in person task scores are both significantly better and worse than both video and phone. Figure 5: Tasks Score Sorted by Mode of Appearance Montana Video Evaluation Page 6
Tasks Scores By Mode 10.0 8.0 6.0 4.0 2.0 0.0 I I I I I I I I I T T T T T T T T T V V V V V V Series1 3.2 4.15.6 6.06.2 6.38.5 8.69.0 6.47.0 7.1 7.17.2 7.5 7.5 8.18.15.8 6.0 6.56.5 7.4 8.0 One hypothesis is that the chair of a meeting can irritate or enthuse participants in person more than by phone or video. Figure 6: Meeting Tasks Score Sorted by Score Tasks -- Score Orderd With Modes 10.0 9.0 8.0 7.0 6.0 5.0 4.0 3.0 2.0 1.0 0.0 I I I V I V I I T V V T T T T V T T V T T I I I Score 3. 4. 5. 5. 6. 6. 6. 6. 6. 6. 6. 7. 7. 7. 7. 7. 7. 7. 8. 8. 8. 8. 8. 9. Montana Video Evaluation Page 7
The more general conclusion, from the interviews, is that all these conclusions are subject to meeting management issues discussed below. These issues may reflect the ambivalence about meetings any meetings in the legal aid culture and can be taken care of by careful attention to meeting management skills. C. Conclusions about Trainings and Clinics Conclusion Six: Video Training Participation Is Useful Video training is useful but as with the other uses of video requires focused trainer and management attention on its unique aspects. Training by video requires significant additional attention by the trainer to achieve the level of attention achieved in in-person trainings. It saves significant resources and makes additional training possible. There is indication based on one comparison that it is less directly effective than the more expensive in-person attendance. Figure 7: Training Effectiveness Comparison 9.0 8.0 7.0 6.0 5.0 4.0 3.0 2.0 1.0 0.0 General Effectiveness Survey -- One Training Comparison In Person By Video How informative was the How easy to understand How effective as a teacher How much will the session More encouragingly, however, those who took the course on video felt more strongly that it would be useful in their work. It is possible that this is because remote services are delivered to those most in need. Montana Video Evaluation Page 8
Perhaps as a consequence of the generally lower effectiveness scores, the self-assessment learning score was lower for those who took the workshop over the video. 6 Figure 8: Learning Test Score Comparison Average Score on Learning Test -- One Workshop Comparison 100.0 80.0 60.0 40.0 Average Score on learning Test 20.0 0.0 Individual Video Conclusion Seven: Video Delivery of Self-Help Clinic Services Is Highly Successful Self-help clinic services can be very successfully delivered by video. In contrast to the trainings, the clinics delivered by video appear very successful based on observer data. The processes established by MLSA for clinic include review by the attorney of materials completed by the litigants. This therefore provides a mechanism for catching any errors or omissions, and teachers are confident that they are doing so. Approx 79 people have participated in SHLP video conf clinics between September of 2006 and April of 2007. 6 There were 12 in person participants and 19 video in the single comparison Montana Video Evaluation Page 9
Figure 9: Clinic Teacher Observed Effectivness Observed Clinic Teacher Effectiveness 9.1 9.0 9.0 9.0 8.9 8.8 In person (3) Video (2) 8.7 8.7 8.7 8.6 8.5 Rate the overall effectiveness of the teacher. (Score 1-9 with 9 best.) Rate the level of interaction between the clients and the teacher. (Score 1-9 with 9 best.) Figure 10: Clinic Learning Effectiveness Average Clinic Observed Learning Goal Effectiveness (Max = 9) 8.4 8.3 8.2 8.1 8.0 7.9 7.8 7.7 7.6 In person (3) Video (2) In person (3) Video (2) Montana Video Evaluation Page 10
In both the above charts, an observer rated a total of five clinics. 7 D. Conclusions about Interviews and Mediation Conclusion Eight: Client Interviews by Video Are Appropriate and Successful Client interviews conducted by video save resources and make additional pro bono participation possible. Such interviews save resources and facilitate pro bono participation but require attention to the comprehensiveness of the interaction and to the effectiveness of communication, dependant on circumstances, as suggested below. However, based on data for four interviews only, there is some general possible indication that interview communication is less successful than in person interviewing. There is therefore reason for care in the setting up of such interviewing, and for training in such interviewing. 8 The chart below summarizes communication satisfaction. Figure 11: Attorney and Client Satisfaction with Interviews Interviews: Attorney and Client Satisfaction Averages (Max = 9) 10 8 6 8.5 8.6 7.75 7.675 Attoney Satisfaction Average 4 2 Client Satisfaction Average 0 In Person (2) Video (2) It is, however, encouraging, if not statistically significant, that on the critical issues of client understanding of what needs to be done, and of client follow through, as rated by the client, the in-person and video scores are very comparable. 7 There is insufficient data on longer term outcomes, or on the clinic users views for comparison purposes. 8 The attorney number is based on four questions, and the client one on five questions, which included effectiveness of communication. Montana Video Evaluation Page 11
Figure 12: Attorney Goals for Client Follow Up. Attorney Goals for Client Follow up (Max = 9) 9 8 7 6 5 4 3 2 1 0 8.0 7.8 7.7 7.7 Attorney Goals for Client Follow Up -- Clarity of Communication Attorney Goals for Client Follow Up -- Extent of follow up In Person (2) Video (2) Conclusion Nine: Mediation Services Can Be Delivered by Video Mediation can be highly successful over video but requires adjustment on the part of the mediator. The use of video makes possible delivery of mediation services over a far broader area but requires attention by the mediator, based on lack of physical presence. This conclusion is based on mediator interview data. While only a few such mediations are conducted each year (ten in the last three years, with less in later years), they are valued by the mediator, who makes careful choices about which cases are appropriate for the use of the technology. E. Conclusions about Court Appearances Conclusion Ten: Video Court Appearances Can Make Major Contributions to Access to Justice, but only when appropriate Put most simply, when it occurs, the use of video court appearances by MLSA attorneys and pro bono lawyers means that those who would otherwise be forced to appear without lawyers have the benefit of counsel. Moreover, the use of video appearance technology means that legal aid has a presence in counties from which they would be absent if video were not there as an option. For the courts and other agencies, the technology is resulting in reduced costs and increased ability to schedule and control the courtroom schedule. However, the technology is used much less frequently within the legal aid environment than had initially been hoped, and must be used with some caution. Montana Video Evaluation Page 12
While users and stakeholders report adjustments that need to be made to take full advantage of the technology, and while we are currently far from confident that appearance by video has no downsides for the remote participants or their clients, in the current access to justice environment none of these uncertainties undercut the strong overall endorsement given to the technology. These downsides may be associated with a lack of immediacy and presence and are discussed in detail below. The possible downsides underline the need for caution in making sure that the technology continues to be used with sensitivity to overall access to justice goals. This report includes a number of recommendations that could go far to ensuring that these access goals are met. However, it must be acknowledged that while video appearances in the court system as a whole continue play a significant role, usage within MLSA has never really taken off. This circumstance appears to be related to the low number of hearings in family court cases, to the focus of MLSA attorneys on domestic violence cases, and on the choice by the program to provide services in cases in which video appearances are less appropriate. 9 The chart below shows the small amount of data on effectiveness of direct and cross examination. Based on a total of four hearings, these are the scores of effectiveness scored by observers of the goals established by the lawyer. Figure 13: Observed Attorney Courtroom Effectiveness Observation Scores (Max = 3) 2.00 1.50 1.00 0.50 In Person (2) Video (2) 0.00 Direct Testimony Score Cross Exam Score 9 While statistical data was collected from a total of 4 hearings, 2 in person and 2 by video this data was not sufficient to draw statistically meaningful conclusions about the relative effectiveness of video and in person court appearances. However, the data from even these limited numbers suggest a relative lack of difference between the two kinds of appearance. Montana Video Evaluation Page 13
Based on the same small number of cases, it is interesting that the client score for in-person and video cases is almost the same, while there is a significant apparent drop off for attorney satisfaction. 10 Figure 14: Attorney and Client Courtroom Satisfaction Attorney and Client Satisfaction (Max = 9) 10.00 8.00 6.00 4.00 Attorney Satisfaction Client Satisfaction 2.00 0.00 In Person (2) Video (2) It is noteworthy that the video system has generally strong judicial approval. Phone interviews with six judges, all of whom use the technology, 11 show that the technology is used most frequently for criminal cases, for mental health commitments, and for default dissolution of marriage. This is consistent with the low usage by MLSA. Judges like the savings in time and money, and there is some disagreement in the survey about the extent to which all the parties are fully heard. One judge noted the importance of breaking cases up and managing them more closely. Most judges have not changed how they manage the courtroom, and do not think that attorneys behave any differently. However, one judge thought that attorneys were more likely to forget protocol over video and more likely to be disrespectful. F. Conclusions about Impact on the Overall Delivery System Conclusion Eleven: Overall Impact on Planning and Managing the Access to Justice Delivery System Perhaps the most unexpected impact of the deployment of video conferencing in Montana was the extent to which it has transformed the discussion about access to justice so that resources and need are now perceived and analyzed statewide. The ability to deliver services across the state regardless of where the capacity is located means that the analysis of how to meet need is now finally separated from a presumption that service delivery should be based on where the capacity is. 10 These scores are aggregates of four different satisfaction questions. 11 Five of the six use the technology at least one a week. Most of the judges rated themselves as very open to technology. Montana Video Evaluation Page 14
In other words, true state planning can now begin. G. Conclusions about Evaluation of Technology in the Legal Aid Context Conclusion Twelve: There are Limitations on the Viability of Small Legal Aid Environments for Comprehensive Evaluations of Complex Technology The original design of this evaluation was very ambitious, requiring extensive follow up and data collection. It was simply impracticable to impose the required level of data gathering and intrusion upon normal operations. Among the difficulties were the volume of data required, the delay inherent in much of the data required, and the need to locate and follow up with people who move frequently. Thus fewer data sets were collected, and in some areas longer term data could not practicably be collected. In a sense this project was seeking to conduct the evaluation of video per se in the legal environment that should, but has not been conducted. Faced with the task of assessment from scratch, rather than assessment of the use of a technology in the legal aid environment, the task became greater than was reasonable. On the other hand, much valuable information was gathered about the value of the technology, and how to enhance and maximize that value. What is missing is the statistical proof of the conclusions offered. H. General Conclusions about Benefits of the Technology Conclusion Thirteen: The use of video conferencing for appearance and participation in access to justice provides a number of clear benefits. Benefit One: Judicial Control of Calendars The use of video conferencing for court appearances allows judges much greater control of their calendars, particularly in rural areas. Judges have commented that when an attorney has traveled six hours to a hearing it is hard to hold the attorney to his or her 15 minutes. Benefit Two: Cost Savings The use of video conferencing for appearance and participation appears to produce significant cost savings in all the areas in which it has been used. Montana Video Evaluation Page 15
The data is more complete for MLSA use for trainings and meetings. In these areas the technology has produced regular and significant savings in both travel costs and time for staff. For example, staff from Missoula and Billings (MLSA's two largest field offices) would travel to the main administrative office in Helena for training on case management or for staff meetings. Using video conferencing instead, the program saves $217 per round trip in mileage from Billings, and $112 in mileage for a round trip from Missoula. An all-staff meeting or training using video conferencing saves the program $4,347 in travel costs and $ 3,540 in staff time savings - for a total savings of $7,886 over an in-person all-staff meeting with 25 people traveling. These savings come from savings on travel expense reimbursements for mileage, lodging and meals, and the value of staff time that can be spent on case work instead of travel - averaged at 6 hours per employee. For many employees, it is a savings of 4-6 hours, for two employees, of 7 hours each way. The savings are smaller for appearances, mediation, and the like, because they do not involve so many people, but they are still significant. Benefit Three: Potential of Increased Representation The use of video conferencing provides legal aid organizations with the ability to provide representation in situations and contexts in which it would otherwise be impossible. Careful procedures must be followed to ensure that this is used in appropriate circumstances. Benefit Four: Potential for Increased Pro Bono Participation The use of video similarly facilitates much greater opportunities for pro bono participation. It is clear that private attorneys are more willing to provide assistance if they do not feel that they have to travel large distances for interviews and hearings. Even if the travel burden would be borne by the litigant if there were no video, the attorney appreciates the greater chance that the litigant will turn up and will be on time when video is used. Benefit Five: Comparison with Telephone Compared to phone meetings or appearances, the use of video provides a very significant improvement over phone meetings or appearances. The sense of greater presence, the use of body language and facial expression make for a far greater sense of actual presence and participation. Montana Video Evaluation Page 16
IV. Issues Needing Addressing Notwithstanding the great enthusiasm for the advantages of video conferencing in access to justice, almost all of the research interviewees had specific concerns and suggestions. The most significant are summarized below. Taken together they underline that video appearance and participation are not the same as in-person appearance and participation, and that care and attention is needed to avoid prejudice and optimize outcomes. These concerns lead to a number of general recommendations for processes that should be used to address these concerns and optimize the use of video conferencing. These appear below in interim form. It should be noted that when fully analyzed, the observation and survey data may underline and will certainly enrich these insights. A. Court Appearance Issues Criteria for When Video Use Is Appropriate Many commented that notwithstanding the advantages of video appearances, there were still times it would not be appropriate. They noted that in long cases, for example, the disadvantages of video would no longer be outweighed by the cost and convenience advantages of video. Implicit in this is that there are cases not appropriate for video appearance. Programs need protocols to identify these cases. Camera Control Issues Control of the camera is a significant issue. The technology permits either side to control either or both cameras, although each side can lock its camera, preventing the other location from changing what the other side sees. Some judges have insisted on having control of the remote attorney camera, in order to make sure that there is no one who should not be present in the remote location. More troubling, some judges have also apparently insisted on maintaining control over the courtroom camera. When this happens, the attorney does not have the ability to direct the camera to show whatever he or she feels must be seen in order to provide effective advocacy. Moreover, even when the remote attorney has the formal capacity to control the courtroom camera, sometimes it is not practical to move the camera around fast enough to do so. Moreover, for some attorneys, the attention the camera control process requires detracts significantly from the attention the attorney should be giving to the proceeding itself. This has happened, for example during an active cross examination by a pro se litigant of a domestic violence Montana Video Evaluation Page 17
petitioner. 12 Additional training is required. It might be helpful in such cases for the attorney to have a camera assistant who would manage the camera, under the direction of the attorney. Camera Location Issues There is a similar technological issue with respect to the location of the camera. When the camera is placed, as it often is, on top of the screen, it may appear that speakers are not making eye contact with the listener or questioner. Rather the speaker will appear to be looking down, perhaps giving the judge the sense that there is a credibility problem. This general problem might be reduced by placing the camera alongside the monitor, although as close as possible to it, rather than on top of the monitor. It might also be addressed by training speakers to look at the camera rather than the monitor. This might be distracting to the speakers, particularly witnesses who would not be experienced in a video environment. Ideally, the industry should explore a hardware solution. Courtroom and Camera Layout Issues Given the reports of problems for remotely appearing attorneys not easily seeing all the players in the courtroom, consideration should be given to laying out the courtroom to maximize the view of those watching by video. This may mean greater clustering of the players. Location of the camera is particularly important. At a minimum, the camera must be placed where it can be set to show all of the players at one time, allowing the remote attorney to maintain an overview. Cross-Examination Issues Questions were raised about whether an attorney cross examining by video has the same flexibility in terms of using immediacy, body language and positioning to control the environment in the interests of attempting to bring out truth. Attorneys will have to adjust their courtroom styles and in some cases assess whether the loss of immediacy in video presents an unacceptable change from in-person presence. These issues will be much more significant in cross examination related to personal integrity rather than complex facts. Interruption and Objection Issues Video conferencing systems are subject to a delay which varies greatly with the technology and the link quality. Moreover, a remote video-appearing attorney necessarily has inherently less capacity to project into the proceedings compared to a physically present attorney. The result is that, depending on circumstances, it is somewhat harder to interrupt or object by video. Moreover, some attorneys report feeling a greater reluctance to object over video, given that this is likely to be more complicated, and to lead to greater disruption, and therefore perhaps, at least in the minds of the attorneys, more likely to result in judicial displeasure. 13 12 The technology supports the use of camera presets, which allow the user to pre-set various camera angles and to shift between them at the touch of a button. However the availability of this feature is not widely known. Moreover, it is not necessarily clear that the use of such presets will alleviate the problem fully. 13 That this reluctance was reported more frequently by female attorneys than by male attorneys should perhaps be cause for reflection by both judges and attorneys. Montana Video Evaluation Page 18
There is need for better ways to object or interrupt when needed and appropriate. There is also need for ways of changing behavior so that serial speaking and appropriate interruptions are better managed. Finally, it is clear that time delay is very technology-sensitive, and standards and certification must be established, as discussed below. Litigant and Counsel Communication Issues Judges and attorneys both reported that there are sometimes problems for attorneys and clients in communicating during hearings. Not all the systems are set up for easy confidential pre-hearing communication between the client and the attorney. Much more challenging is how to make it easy for the two to communicate during a hearing. Attorneys are noticeably reluctant to disrupt the hearing by asking for a communication recess, and it is not clear how the client can reasonably do so. It is possible that the legal aid paralegal present in the courtroom could be authorized by the judge to communicate such a request. Document-Exhibit Issues Similarly, both judges and attorneys commented on the problems of moving documents for admission. Not every location has easy-to-access fax machines. The technique of holding a document up to the camera is not sufficient. Few locations have deployed special document cameras. Microphone Location and Management Issues Several interviewees reported sound quality issues relating to the placement of microphones and failure to follow appropriate desk protocols like not banging the desk or moving paper around on the desk. Rural Fear of Judicial Abandonment At least one judge reported that he has encountered a fear of judicial abandonment by a rural county, i.e. that rural counties served by video will stop seeing the judges except by video and that therefore the counties will lose long term personal connection to the judiciary. Changes in Formality It appears that the use of video appearances may be resulting in changes in the formality/informality balance in the courtroom. Some attorneys and judges feel that the use of video may be resulting in greater formality in order to protect balance in the courtroom. There is a contrary suggestion that to the extent self-represented litigants might appear by video, proceedings should be made more informal to reduce the intimidation factor. Montana Video Evaluation Page 19
Party/Judge/Counsel Alone Rather Than in the Court Environment. Some counsel have reported that it is harder to appear by video before a judge whom they do not know, or in a court or legal culture they do not know. They fear being left out and not knowing how best to engage. Marketing Issues There remains a substantial need for more effective marketing of the video appearance concept to the bar and courts. Different Logistics Issues for Different Courts There is little standardization in where, how, and with what support the systems are set up. The result can be confusion and delay. Bandwidth, Quality and Bridging Issues There are significant differences in the quality of the links as actually used. It appears that these differences are not only a function of the bandwidth used for the link. These differences in overall video quality have a significant impact on the quality of the overall communication interaction at the appearance. There is need for standards and for certification of each possible link as meeting the standards. Miscellaneous Misunderstandings Several of the interviewees report varied misunderstandings about availability, costs, and arrangements needed to be made for video conferencing, particularly in the courts. In some places it is easy to arrange video, in others less so. Sometimes the physical arrangements are unclear. There is need for greater clarity of protocols and appropriate distribution of these protocols. B. Remote Interview Issues Completion and Comprehensiveness Issues Given the greater informality of the interview process, and given the extent to which a successful and effective client interview is dependent on sensitivity on both sides, assessing the underlying differences between video and in-person interviewing is particularly difficult. However, the interviewer has great control over the format, and it is therefore ultimately easier for an interviewer concerned with possible downsides from the lack of direct personal presence to compensate for them. There is, for example, some indication that when interviewing over video there is a need for interviewees and advocates to make a larger effort to make sure that each has covered the goals that they need to cover and that each appreciates the goals that the other has. This could be Montana Video Evaluation Page 20
achieved by training and by protocols for video interviews that include requirements for questions that aim to check for whether the client and advocate have indeed communicated all that each wishes. In particular, the client could be told by the advocate what the advocate feels are the client s goals and the important issues that the advocate feels the client wants addressed, and the client would be given the opportunity to add to these. Similarly, the advocate could summarize the points the advocate wanted to make and could ask the client to confirm his or her understanding and agreement. In summary, interview procedures may need to become somewhat more formal. C. Remote Meeting Participation Issues Management and Chairing Issues Several interviewees commented on the need for different protocols for meeting management when some or all are participating by video. In particular, efforts must be made to include all participants, agendas should be distributed, the meeting must be more firmly chaired, and attention must be paid to the risk that some participants drop off. Clearer protocols are needed. Managing Against Withdrawal Tendencies In particular, the chair has to protect against the tendency for remote attendees to tune out. Indeed, there have even been reports of remote meeting sites muting their microphone, so they could make their own local comments at the remote site. Resentment That Participants Have to Go to a Different Place for the Meeting There have been reports of resentment that remote meeting participants have to travel to the video location, rather than have a phone meeting in their office. This might be dealt with by making sure that there is significant value to participants, that, for example, they get information that they could not get from another source. However, it is far from clear that it would be cost effective to deliver high quality video directly into each office, at least until there is a far higher usage rate. D. Training and Continuing Legal Education Issues The Need for Quality in Content and Delivery It is simply harder to hold peoples attention over video. The ratings in satisfaction surveys were lower for remote sites. The need for quality in content and materials is significantly greater. The Need for Supportive Materials Similarly, supportive materials, particularly presentation materials such as PowerPoint presentations, must be developed with sensitivity to the needs of a remote site. These sites are more likely to be subject to distractions, and there is greater need to hold participants interest in the flow of the presentation. Montana Video Evaluation Page 21
The Need to Engage Remote Participants Teachers need to develop ways to engage participants at the remote sites. This can be done by acknowledging the participants at the remote site, by encouraging questions from that site, and by directly asking remote participants questions. Looking at the Camera to Look at the Audience Just as with court hearings, when a teacher looks at the screen rather than the camera, he or she is likely to appear to be looking down. This can be handled by training the teacher, by positioning the camera, or perhaps by use of the picture in picture feature to remind the speaker of how she or he appears. The Need for a Camera Operator Given the disadvantages of static cameras and given how hard it is for the teacher to be worrying about the camera, serious consideration should be given to having a camera operator at the teaching site move the teaching site camera around during training programs. Value of an Audio-Visual Test There has been some disruption when the technology has not initially worked correctly. There is great value to routinely performing a full audio-visual test prior to the training session. The more complex the session, as when there are multiple remote sites, the more important the AV test is. Possible Need for Remote Facilitator for Larger Groups Larger remote groups might stay better focused on the training with a facilitator at the remote site. At times there might be local discussion of matters taught initially over the link from the central facility. If so, the main teacher should prepare discussion questions. E. Mediation Service Issues Protection Procedures While mediation configurations can vary greatly, when the parties are alone in remote locations steps must be taken to ensure that both the parties are fully comfortable with this set-up. It is recommended that there be confidential conversations with each of the parties prior to the commencement of the mediation session itself, and that there be private checks during the process to prevent any party feeling overborne. Sound Volume Issues It has been reported that failure to balance the sound correctly can be significantly disconcerting in a mediation environment. Montana Video Evaluation Page 22
Body Language Review Mediators should be alert to body language and positioning during remote mediation and should make sure that their video image does not prevent them making use of this data. Issue Area One: Management of the Technology and Its Processes Value of Core Staffing The value of the court system providing core staffing for the video conferencing project cannot be overstated. The fact that there is a central administrative and marketing capacity has had a huge impact on the overall use and functionality of the system. Bridging Issues The cost and quality implications of the bridging needed when video must link across two different networks are significant. It is to be hoped that competitive pressures will reduce bridging costs. V. General Recommendations A. Continue Adoption with Sensitivity to Optimizing Quality of Access The overall recommendation is to continue adoption and marketing the use of video in all areas. Such efforts are particularly important when the alternative is that a litigant would be forced to appear without counsel. This general recombination must be carried out with sensitivity to making the use of video as consistent as possible with not just access, but quality access. As we learn more about the implications of appearance and participation by video, we are likely to discover more about how and why there may be downsides for not being present in person, as well as enhancing our appreciation for the fact that notwithstanding these downsides, it is far better to have a remote appearing attorney than no attorney at all. It is the responsibility of all participants to minimize the downsides and indeed to avoid circumstances in which these downsides are too great. This will include the development of the detailed protocols discussed below, training for all involved, and making sure that participants are fully informed of the implications of their choices. B. Enhance Marketing and Promotion There are a wide variety of methods available for marketing and promotion of video appearance and participation in access-to-justice activities. Among them are: Montana Video Evaluation Page 23
Development of a Model Order for issuance by the judge for the management of individual video appearances Routine inclusion in case management orders of language offering the parties the option of video appearance Use of the State Bar of Montana to promote the use of video appearance Clearer costing and pricing materials for the bar C. Develop Usage Protocols In the long term, there is need for a set of protocols for use of video appearance and participation. In the short term, some such protocols may begin to be developed, and video should be used with sensitivity to the issues raised. Court Usage Protocols There may need to be two protocols developed for court hearings, one for the attorney and litigant to use to make sure that the case is appropriate for video appearance, and one for the court and the litigants to use to make sure that video appearance cases proceed appropriately. The more comprehensive the court protocol, the easier it will be for the attorney and litigant protocol to find video appropriate for use. Court and Litigant Protocol Among the topics that the protocol might address are: Introducing all the key players in the courtroom to create more of a sense of responsibility to all players. Developing a routine audio and visual check, including sound from all locations and all likely speakers. Standardizing of who does what when. Creating clear rules for interruptions and objections, including ways for remote appearing attorneys to stop testimony or proceedings by objection. Creating clear rules for moving around the courtroom, in order that the remote appearing attorney is not confused and that the advocate in the courtroom is able to bring problems to the attention of the judge. Montana Video Evaluation Page 24
Establishing who controls the camera, with a strong presumption that the camera is controlled remotely, in other words that each side controls what they see in the other location. Maintaining sound quality, including not moving papers in a manner that creates interference. Outlining procedures for document sharing and admission, including either complete prior sharing or availability of a fax machine. Establishing a procedure that the relevant procedural portions of these protocols be read at the beginning of each hearing and agreed to on the record. Outlining judicial steps to make sure that nothing has been forgotten because of remoteness. Litigant and Attorney Pre-Hearing Protocols Reviewing issues to make sure that none are particularly difficult to deal with over video. Considering who the judge, counsel and parties are, to make sure that video would not be inappropriate. Considering who the represented party is as to whether there might be any particular problem. Reviewing hearing preparation to make sure that any additional needed contingency planning has been done, including, critically, the exchange of all exhibits prior to the hearing. Talking with the client about possible difficulties and downsides of video appearance and including the same in the retainer. These matters will become easier to handle with experience. At this point it should merely be pointed out that some judges may be harder to reach by video, and some opposing parties or counsel may be more prone to take advantage of the remoteness of the attorney appearing by video. Client Interview Protocols Assessing possible downsides of a video interview based on information about case, litigant and situation. Introducing client to the needs of video interview process. Including steps to make sure that everything has been covered in the interview. Montana Video Evaluation Page 25